Martin v. Howard

Citation68 So. 982,193 Ala. 477
Decision Date04 February 1915
Docket Number916
PartiesMARTIN v. HOWARD.
CourtSupreme Court of Alabama

Rehearing Denied May 20, 1915

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Ejectment by Wm. M. Martin against J.M. Howard. Judgment for the plaintiff as to all land disclaimed by him, and plaintiff appeals. Affirmed.

William M. Walker, of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

SAYRE J.

Upon the return of this case to the trial court after a reversal here on a former appeal (181 Ala. 613, 62 So. 99), the formal suggestion that the suit arose out of a dispute as to a boundary line between the parties, made in pursuance of section 3843 of the Code, was eliminated on demurrer. Nevertheless much of the evidence was directed to the matter of the true location of the line between the parties, and properly so. Plaintiff (appellant) and defendant showed paper titles in themselves respectively to the southwest quarter of the northeast quarter of section 29, the land so described in the complaint, and the southeast quarter of the northeast quarter of the same section. Defendant, to meet the opinion on former appeal, at first amended his disclaimer so as to make it show a disclaimer as to that part of the land sued for lying west of what was described as the Wheeler line which was alleged to be designated by marks on trees and to be 320 feet west of the Salter line claimed by plaintiff. It is to be presumed that the evidence was taken on the plea of the general issue as to the land not disclaimed. Later, as we shall see, defendant amended his disclaimer and incorporated therein a plea of not guilty as to the land not disclaimed. In addition to his evidence concerning the true location of the line of the government survey, defendant adduced testimony tending to show that, even if the Wheeler line was not the true government line between the two forties, he had been in open, notorious, and hostile possession continuously for more than ten years up to the Wheeler line under a bona fide claim that it was the true line, and thereby claimed to have acquired title up to the last-named line by adverse possession. Plaintiff's evidence went to establish the Salter line as the true line and to a denial of adverse possession by defendant. These questions, under the evidence were properly submitted to the jury for decision.

In the last stages of the trial, after the parties had offered testimony along the lines indicated, defendant put in evidence his title deed to the southeast quarter of the northeast quarter. This deed showed that defendant's grantor, as between himself and defendant, had worked a severance between the surface of the land therein described and the underlying minerals, and that defendant had acquired thereby no title to the minerals. Just before the case was submitted to the jury, defendant was allowed to further amend his disclaimer by including therein the minerals under "the land in suit." There was no error in allowing an amendment at that stage of the cause. Section 5367 of the Code provides that amendments, adding matter which could have been included in the original pleading, shall be allowed while the cause is in progress, without costs and without delay, unless injustice will thereby be done to the opposite party. Disclaimers, though not strictly pleading, are within the remedial purview of the statute of amendments. Appellant without denying the right in general to amend disclaimers contends that under the circumstances appellee should have been taxed with the costs accrued up to that point at least, substantially all the costs of the cause, as a condition of the right to amend. If the...

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6 cases
  • Crawford v. Mills
    • United States
    • Alabama Supreme Court
    • June 29, 1918
    ... ... Farmer and T.M. Espy, both of ... Dothan, for appellant ... W.O ... Long, of Abbeville, W.R. Chapman, of Dothan, and H.L. Martin, ... of Ozark, for appellee ... [79 So. 457] ... THOMAS, ... The ... original complaint, filed July 26, 1915, was against ... 261; L. & N.R.R. Co. v. Abernethy, 192 ... Ala. 629, 69 So. 57; Stricklin v. Kimbrell, 193 Ala ... 211, 215, 69 So. 14; Martin v. Howard, 193 Ala. 477, ... 68 So. 982; Wilson v. Ratcliff, 197 Ala. 548, 73 So ... 84; Lisenby v. Capps, 75 So. 332. In Gambill v ... Fox Typewriter ... ...
  • Smith v. Bachus
    • United States
    • Alabama Supreme Court
    • November 11, 1915
    ...been made, the answer would be that the verdict and judgment under the plea of not guilty was for area specifically described ( Martin v. Howard, 68 So. 982; Bradford v. et al., 171 Ala. 113, 56 So. 532), and was not a verdict on a suggestion to the court of a disputed line under section 38......
  • Roden v. Capehart
    • United States
    • Alabama Supreme Court
    • December 16, 1915
    ... ... After verdict has been ... rendered a cause is not "in progress," in such ... sense that the right to amend pleadings exists. Martin v ... Howard. 68 So. 982. It has been held that the refusal of ... the trial court to allow additional pleas after evidence is ... the exercise ... ...
  • Central of Georgia Ry. Co. v. Southern Ferro Concrete Co.
    • United States
    • Alabama Supreme Court
    • May 20, 1915
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